“Vile.” “Repugnant to the American dream.” “Cruel.” “Callous and despicable.” “An abhorrent act of moral terrorism.” These are just a few of the comments that have been uttered in the past few weeks with respect to a policy change recently announced by the federal government. (These comments come, respectively, from Attorney General Xavier Bacerra of California, U.S. District Judge George Daniels, Congresswoman Grace Meng (D-NY), Congresswoman Judy Chu (D-CA), and Families USA.)

I know what you are thinking: What completely sensible thing has the Trump administration done now?

The quoted comments all relate to a so-called “final rule” issued by the Department of Homeland Security in the Federal Register on August 14, scheduled to take effect on October 15, on the subject of “Inadmissibility [for immigration] Based on Public Charge Grounds.”

So what is this new rule, and what about it has caused the progressive left to go completely berserk?

Here’s my take: Since Immigration Act of 1882, the U.S. immigration statutes have in clear terms explicitly instructed that entry be denied to any person deemed "unable to take care of himself or herself without becoming a public charge.” Despite the rather explicit language of Congress, the Clinton administration, in “guidance” issued in 1999, found a way to effectively read this provision out of the statute and admit large numbers of immigrants without regard to whether they were likely to become, or even were already, public charges. The Trump administration has now specified a basis on which the statute can and will be enforced as written and intended. Cue the outrage!

Let’s go through this in some more detail. The Immigration Act of 1882 was the very first general immigration statute in the U.S., so the “public charge” basis for exclusion of an applicant for a visa has existed for as long as we have had immigration laws. The relevant language has changed somewhat over the years, as extensive amendments and updates to immigration laws have been enacted; however, as far as I can determine, none of the changes have been material. Here is the current version of the “public charge” provision, as codified at 8 U.S.C. Section 1182(a)(4):

[A]liens who are inadmissible under the following paragraphs are ineligible to receive visas and ineligible to be admitted to the United States: . . . (4) Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

There are also other more recent statutes that bear on this issue. For example, 8 U.S.C. Section 1601, enacted in 1996, contains the following language:

Self-sufficiency has been a basic principle of United States immigration law since this country's earliest immigration statutes. . . . It continues to be the immigration policy of the United States that . . . aliens within the Nation's borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations, and . . . [that] the availability of public benefits not constitute an incentive for immigration to the United States.

That seems rather clear. So how is the administrative state under a Democratic (Clinton) administration going to nullify this? Simple. In May 1999 the then Immigration and Naturalization Service issued a document that they called Field Guidance on Deportability and Inadmissibility on Public Charge Grounds. In that document, they purported to define the concept of being a “public charge” as including only “receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” But wait! How about the vast array of non-cash in-kind benefits and handouts that are in fact the principal ways in which our government maintains tens of millions of people as public charges? Those were simply defined away as not counting.

As a further indicator of the rank cynicism going on, recall that the year of the major federal welfare reform, the one that severely restricted and limited the availability of cash welfare, was 1996. What followed after 1996 was an explosion of the in-kind benefits, the biggest of which are Medicaid, food stamps (SNAP) and public housing. Today, there are some 83 federal “need based” welfare and handout programs, of which 76 are in-kind and only 7 are cash. The annual total of the in-kind distributions approaches $1 trillion. Annual federal spending on TANF — the main federal cash distribution program — is a paltry $16.5 billion, well less than 2% of the total distributions. Go here to my June 2, 2018 post for lots of details.

So effectively, by its cynical definition of “public charge,” the bureaucracy said that only $16.5 billion of government’s annual distribution of resources counts toward making the determination, and the other $900+ billion or so does not count and can be ignored. Thus may we admit millions who will be living primarily off the government, right in the face of a statute making it the “policy of the United States that . . . aliens within the Nation’s borders not depend on public resources.”

The Trump administration’s proposed rule would allow the consular officer, or other official making a determination on a visa or immigration application, to take into account receipt of benefits from at least three other programs: Medicaid, housing assistance, and food stamps. Although these are only three of some 76 categories of federal in-kind means-tested distribution programs, to be fair they constitute a majority (but not by much) of the total spending on such programs.

According to this New York Times article on October 11, by that date some 21 lawsuits had been brought seeking to enjoin the new rule, and three of the judges had granted injunctions against beginning implementation, two of those on a nationwide basis. I can’t find a good link for any of the opinions as of this date, but the Times includes a quote from the opinion of Judge George Daniels of the Southern District of New York:

“The rule is simply a new agency policy of exclusion in search of a justification,” Judge George B. Daniels of the Federal District Court in Manhattan wrote in his ruling. “It is repugnant to the American Dream of the opportunity for prosperity and success through hard work and upward mobility.”

“In search of a justification?” I guess that in Daniels’s view the statutory language doesn’t count as a justification. Daniels was appointed to the bench by Bill Clinton. If you’re wondering how the forces of progressive litigation can get three injunctions so quickly without suffering a loss, here’s how it’s done. When you file a lawsuit, you find out your judge on the day of the filing. With 21 lawsuits to choose from, you then look at the judges and see which ones are favorably disposed to this kind of impact litigation and likely to grant your injunction. You then pursue the injunction motions before those judges, while letting the other cases before unfavorable judges just sit. Thus, no amount of district court judicial appointments by President Trump can really put a dent in this kind of game. However, when one of these cases reaches a Court of Appeals, it will get a random draw of judges, and could very well end up before a majority of Republican-appointed judges. A Court of Appeals opinion may come down some time next year. And then there’s the Supreme Court.

The DHS Federal Register publication notes that the government received some 266,000 comments to the proposed rule, the “vast majority” of which opposed the rule. I guess that shows you whom the commenting class consists of. Something tells me that the vast majority of ordinary Americans understands that it just doesn’t work to admit as immigrants millions of people who immediately sign up for public handouts. My question is, why would anyone think it’s a good idea to force the U.S. to accept as immigrants large numbers of people who are highly likely to become public charges? But this is exactly what the progressive movement is trying to accomplish — with the Democrat-appointed part of the judiciary as enthusiastic partner. Somehow they believe that the resources of the U.S. government and its taxpayers are so infinite that a redistribution system can be established to create perfect justice and fairness, not just in the U.S., but worldwide. And, if you don’t agree, if you think that there are limits, and if you think that the laws passed by Congress ought to bind the President and the courts, then you are “vile,” “cruel,” “repugnant,” “callous,” “despicable,” “abhorrent,” you name it.